Middleton et al v. G D Searle and Co et al

Filing
2

Middleton et al v. G D Searle and Co et al
Doc. 2
CCaee 3:06-cv-00142-CRB as s M:05-cv-01699-CRB
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. S C O P E OF ORDER 1. T h i s Order shall govern the practice and procedure in those actions This Order Relates to: ALL CASES. PRETRIAL ORDER NO. 2: INITIAL CASE MANAGEMENT AND ORGANIZATION OF COUNSEL IN RE: BEXTRA AND CELEBREX MARKETING SALES PRACTICES AND PRODUCT LIABILITY LITIGATION CASE NO. M:05-CV-01699-CRB MDL No. 1699 UNITED STATES DISTRICT COURT NOR THE RN DISTRICT OF CALIFORNIA
t r a n sf e r r e d to this Court by the Judicial Panel on Multidistrict Litigation ("the Panel") p u r s u a n t to its Transfer Orders of September 6, 2005, any "tag-along" actions transferred t o this Court by the Panel pursuant to the Panel's Rules of Procedure, and all related action s that have been or will be originally filed in, transferred to, or removed to this Co urt and assigned thereto. 2. T h i s Order and all subsequent Case Management Orders shall be binding
o n all parties and their counsel in all cases currently pending or subsequently transferred t o In Re: Bextra and Celebrex Marketing, Sales Practices and Product Liability L i t ig a t i o n , MDL No. 1699 and shall govern each case in the proceedings unless they exp licitly state that they relate to specific cases. -1Dockets.Justia.com
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1 II. 2
C A S E S BEFORE THIS COURT 3. T h e Court will be guided by the Manual for Complex Litigation, Fourth
3 (" M CL 4th") (2004 ed.), as well as by the Civil Local Rules of Court for the United 4 Sta tes District Court for the Northern District of California ("the Civil Local Rules"). 5 C o u n s e l are directed to familiarize themselves with the M CL 4th, this Order, and the 6 C i v i l Local Rules. 7 4. T h e inclusion of any action in In Re: Bextra and Celebrex Marketing,
8 S a l e s Practices and Product Liability Litigation, MDL No. 1699, whether such action 9 w a s or will be filed originally or directly in the United States District Court for the 10 N o r t h e r n District of California or was or will be transferred or removed from some other 11 cour t, shall not constitute a determination by this Court that jurisdiction or venue is 12 prop er in this District. No reference in this Order to actions filed originally or directly in 13 t h e United States District Court for the Northern District of California shall constitute a 14 w a i v e r of any defendant's contention that jurisdiction or venue is improper and/or that 15 t h e action should be dismissed or transferred, or any plaintiff's contention that 16 jurisdictio n or venue is proper. 17 5. T h e Court requests the assistance of all counsel in calling to the attention
18 o f the Clerk of this Court the filing, removal, or transfer of any case of which they 19 b e c o m e aware which might properly be consolidated with I n Re: Bextra and Celebrex 20 M a r k e t i n g , Sales Practices and Product Liability Litigation, MDL No. 1699. To that 21 e n d , prior to each Status Conference or upon request of the Court, Plaintiffs' Liaison 22 Co unse l and Defendants' Liaison Counsel shall jointly update the master case list. 23 I I I . 24 F I LI N G AND SERVICE; MOTION PRACTICE 6. U n til further Order of this Court, the parties shall serve all papers that are
25 n o t to be filed with the Court pursuant to Federal Rule of Civil Procedure 5(d), including 26 but not limited to disclosures under Rule 26, deposition notices, interrogatories, requests 27 f o r documents, requests for admission, responses thereto, and certificates of service 28 t h e r e o f, by electronic mail on Plaintiffs' Liaison Counsel and Defendants' Liaison
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1 C o u n s e l . Where a paper is applicable to all cases, substantially all cases, a category of 2 cases as discussed in Pretrial Order No. 1, or such categories as may be defined in 3 s u b s e q u e n t Orders, Plaintiffs' Liaison Counsel shall also electronically serve such paper 4 o n counsel of record for individual plaintiff(s) to whom the paper is applicable. Where a 5 p a p e r to be served by Defendants is applicable to a particular case, Defendants' Liaison 6 C o u n s e l shall electronically serve such paper on the counsel of record for the individual 7 p l a i n ti f f ( s) in that case as well as Plaintiffs' Liaison Counsel. The parties shall further 8 m e e t and confer to identify an electronic method for serving and archiving papers that 9 are not to be filed with the Court, such as the service offered by Lexis-Nexis, which shall 10 be the subject of a further Order by this Court. 11 7. C o u n s e l who appeared on behalf of defendants Pfizer Inc., Pharmacia &
12 Up joh n Co., Pharmacia & Upjohn Co., LLC, Pharmacia Corp., G.D. Searle & Co., 13 a n d / o r G.D. Searle, LLC in any case prior to the transfer of such case to this Court (or 14 who appear on behalf of such defendants in cases that are later transferred to this Court 15 prior to such transfer) are hereby relieved from the obligation to register for Electronic 16 C a s e Filing imposed in paragraph 9 of Pretrial Order No. 1. Defendants' Liaison 17 C o u n s e l shall distribute any papers filed in these proceedings to such counsel as she 18 d e e m s necessary and appropriate. 19 8. T o obtain a hearing date for all motions, including non-dispositive
20 m o t i o n s , Plaintiffs' Liaison Counsel and Defendants' Liaison Counsel shall meet and 21 c o n f e r on dates available to counsel. Once they have agreed to several dates, Liaison 22 Co unse l for the moving party shall call the Court's Deputy Clerk, Barbara Espinoza, to 23 o b t a i n a hearing date. 24 9. A b s e n t a specific briefing schedule as agreed to by Plaintiffs' Liaison
25 C o u n s e l and Defendants' Liaison Counsel or ordered by the Court for a specific motion, 26 a l l motions, other than dispositive motions, shall be filed not less than thirty-five (35) 27 c a l e n d a r days before the hearing date. Responses to all contested motions, other than 28 d i s p o s it i v e motions, shall be filed not less than twenty-one (21) calendar days before the
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1 h e a r i n g date. A reply to a response to any motion shall be filed not less than fourteen 2 ( 1 4 ) calendar days before the hearing date. These times may be extended by stipulation 3 a n d / o r by order of the Court, on a reasonable basis. The briefing schedule for any 4 disp ositiv e motions shall be specially set by the Court. 5 10. All parties shall have an ongoing obligation to meet and confer with
6 P la in ti ff s' Liaison Counsel, Defendants' Liaison Counsel, and any other party to whom a 7 m o t i o n may be directed on any application or motion in an effort to resolve outstanding 8 issues before bringing them to the Court. The moving party shall have an obligation to 9 c e r t if y in the moving papers that such meet and confer took place and identify which 10 p a r t y or parties oppose the application or motion. No application or motion may be 11 b r o u g h t by any party except in accordance with the provisions of this section, unless 12 o t h e r w i se ordered by the Court or agreed to by Plaintiffs' Liaison Counsel and 13 De fend ants' Liaison Counsel. 14 11. N o pleadings or other papers shall be filed or discovery conducted
15 c o n c e r n in g liability on behalf of all plaintiffs except as prepared on behalf of the 16 Pla intif fs' Steering Committee ("PSC") and signed by Plaintiffs' Liaison Counsel. 17 I V . 18 S T A T U S CONFERENCES AND AGENDAS 12. T h i s Court will convene periodic Status Conferences on the request of
19 Plaintif fs' Liaison Counsel and Defendants' Liaison Counsel or on its own motion, with 20 P l a i n ti f f s ' Liaison Counsel to give notice of such scheduled Status Conferences to the 21 Ma ster Service List. In order to aid the Court and the parties in preparing for future 22 c o n f e r e n c e s, Plaintiffs' Liaison Counsel and Defendants' Liaison Counsel shall confer at 23 l e a s t ten calendar days prior to each future status conference to attempt to agree upon a 24 p r o p o s e d agenda for the conference. The parties shall submit a joint agenda to the extent 25 t h e y agree, and separate agendas for items on which they do not agree, not less than three 26 cour t days prior to the conference. The agendas are intended to aid the Court in 27 i n f o r m i n g itself of the items or issues which the parties desire to raise at the Status 28 Co nfe ren ce, and the Court may amend or augment the agendas as it deems appropriate.
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O R G A N I Z A T IO N OF PLAINTIFFS' COUNSEL A. 13. P l a i n t if f s ' Steering Committee T o act on behalf of plaintiffs with the responsibilities described below, the
4 C o u r t initially designates the following counsel to serve as the Plaintiffs' Steering 5 C om m itte e ("PSC"): Richard J. Arsenault, Don Barrett, Steve W. Berman, Peter W. 6 B u r g , Thomas P. Cartmell, Michael A. Galpern, Carlene Rhodes Lewis, Tina Bailer 7 Nieve s, Frank M. Pitre, Kristian W. Rasmussen, Mark Robinson, Christopher Seeger, 8 a n d Paul Sizemore. These PSC members reflect the array of actions that the Panel has 9 transf erred to this Court, and include representatives of plaintiffs with products liability 10 c l a i m s and purchase claims. This Court may amend or expand the PSC upon request 11 fro m the PSC, or on its own motion, if and as circumstances warrant. 12 13 B. 14. Plain tiffs' Liaison Counsel and Trial Counsel T h e Court designates Elizabeth J. Cabraser as Plaintiffs' Liaison Counsel
14 and Joseph W. Cotchett as Plaintiffs' Trial Counsel. 15 15. T h e PSC is chaired by Plaintiffs' Liaison Counsel who is vested by the
16 C o u r t with the authority and duty to coordinate and oversee the responsibilities of the 17 P S C set forth below; to schedule PSC meetings and keep minutes or transcripts of these 18 m e e t i n g s ; to appear at periodic Court-noticed status conferences and hearings; to sign 19 a n d file pleadings relating to all actions; and to bind the PSC in scheduling depositions, 20 setting agendas, entering into stipulations, and in other necessary interactions with 21 d e f e n s e counsel. She shall perform other necessary administrative and logistic functions 22 of the PSC and carry out any other duty as the Court may order. 23 16. T h e Liaison Counsel, Trial Counsel, and PSC designations are of a
24 p e r s o n a l nature. Accordingly, this Court looks to these counsel to undertake personal 25 r e s p o n s ib i l it y to perform the designated functions and reserves the discretion to replace 26 t h e m , on their own request or this Court's own motion, should they become unable to do 27 s o . 28 17. I n addition to the duties described elsewhere in this Order and in Pretrial
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1 O r d e r No. 1, Plaintiffs' Liaison Counsel shall have the following duties and 2 r e s p o n s i b i l it i e s . 3 a. E s t a b l is h and maintain a depository for orders, pleadings, hearing
4 transcripts, and all documents served upon plaintiffs' counsel, and make such papers 5 availa ble to plaintiffs' counsel upon reasonable request. 6 b. M a i n t a i n in conjunction with their accountant records of receipts and
7 disbu rsem ents advanced by members of the PSC and received by the PSC and report in 8 w r i t i n g to the PSC concerning disbursements and receipts. 9 c. D e s i g n a t e counsel to schedule depositions, set agendas and otherwise
10 interac t with defense counsel. 11 d. C o o r d i n a t e discovery in I n Re: Bextra and Celebrex Marketing Sales
12 P r a c t i ce s and Product Liability Litigation, MDL No. 1699, to the fullest extent 13 practic able with related litigation proceeding in state court. 14 e. C o o r d i n a t e and consult with plaintiffs' counsel in state court to ensure that
15 pl ain tif fs in both federal and state court have access to a common document depository. 16 f. Co ordin ate with plaintiffs' counsel in state court where practical to avoid
17 du pl ica tiv e depositions or other inefficient discovery. 18 g. P r o v i d e periodic reports to this Court regarding the status of related
19 litigation proceeding in state court. 20 18. T r i a l counsel shall organize and coordinate the work of the attorneys on the
21 t ri al team. 22 23 C. 19. P S C Committees T h e PSC is given the responsibility to create such committees and
24 subc om mittees of the PSC as are necessary to efficiently carry out its responsibilities, to 25 desig nate members thereof, and to delegate common benefit work responsibilities to 26 s e l e c te d counsel (including non-members of the PSC), as may be required for the 27 c o m m o n benefit of plaintiffs. All attorneys carrying out such common benefit work who 28 may look to any common fund or agreement for reimbursement or compensation shall
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1 m a i n t a in and submit time and expense records, as this Court shall specify in a subsequent 2 Order. All such reimbursement and compensation shall be subject to this Court's 3 a p p r o v a l . Membership on the PSC is not a prerequisite to membership on a committee 4 o r subcommittee created by the PSC, and the Court does not need to approve the 5 m e m b e r s of the various PSC committees and subcommittees. 6 20. T h e Panel's September 6, 2005 Transfer Order transfers to this Court
7 a c t io n s asserting wrongful death and personal injury claims which the Panel described as 8 " p r o d u c t s liability actions," as well as actions seeking economic damages arising from 9 t h e purchase of Bextra and/or Celebrex, which the Panel described as "marketing/sales 10 pra ctice s actions." 11 21. S o m e of the actions transferred (or to be transferred) to this Court for
12 c o o r d i n a te d treatment under Paragraph 1 of this Order are proposed class actions on 13 b e h a l f of "third party payors" (such as health and welfare funds, self-insured employers, 14 a n d private for-profit and not-for-profit insurers), and/or on behalf of cash paying or co15 paying consumers of Bextra and/or Celebrex. The third party payors and consumers are 16 s o m e t i m e s collectively referred to as "endpayors," and their claims are sometimes 17 c o l l ec t i v el y referred to as "purchase claims," to differentiate them from the wrongful 18 d e a t h and personal injury claims ("product liability claims") also included in these 19 p r o c e e d in g s . Purchase claims allege violations of law in connection with the sales and 20 marketing of Bextra and/or Celebrex and seek to recover, among other things, all or a 21 p o r t io n of the purchase price paid for Bextra and/or Celebrex during the class periods 22 s p e c i f i e d in those actions. 23 22. The PSC may create a Purchase Claims Committee, and designate certain
24 mem bers as Chair and as Vice-Chairs. The Plaintiffs' Liaison Counsel may designate 25 c e r t ai n responsibilities to the Purchase Claims Committee, such as propounding, 26 s c h e d u l in g , and conducting party and third party document and deposition discovery that 27 p e r t a in s to purchase claims, and for pleadings, briefs and arguments on merits, class, and 28 d i s c o v e ry -r e l a te d motions and matters that pertain to purchase claims; however, the
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1 Co urt will consider Plaintiffs' Liaison Counsel as the counsel having ultimate 2 r e s p o n s i b i l it y for such activities. 3 23. It is intended and expected by this Order that, as to all matters common to
4 the coordinated cases, and to the fullest extent consistent with the independent fiduciary 5 o b l i g a ti o n s owed by any and all putative class counsel to the proposed classes or 6 s u b c l a ss e s they represent, that pretrial proceedings shall be conducted by and through the 7 PSC. 8 VI. 9 O R G A N I Z A T IO N OF DEFENSE COUNSEL 24. T o act on behalf of all defendants with the responsibilities described
10 belo w, the Court appoints Amy W. Schulman to serve as Defendants' Liaison Counsel. 11 T h e Court may amend or expand the Defendants' Liaison Counsel upon request from 12 def end ants , or on its own motion, if and as circumstances warrant. 13 25. D e f e n d a n t s ' Liaison Counsel is vested by the Court with the authority and
14 d u t y to schedule meetings of defendants and keep minutes or transcripts of these 15 m e e t i n g s ; to appear at periodic Court-noticed status conferences and hearings; to sign 16 a n d file pleadings relating to all actions; and to bind defendants in scheduling 17 depositions, setting agendas, entering into stipulations, and in other necessary 18 i n t e ra c t io n s with plaintiffs' counsel. Defendants' Liaison Counsel shall perform other 19 necessary administrative and logistic functions and carry out any other duty as the Court 20 may order. 21 26. D e f e n d a n t s ' Liaison Counsel is given the responsibility to create such
22 c o m m i t t e es and subcommittees of defendants as are necessary to efficiently carry out her 23 r e s p o n s ib i l it i e s and to designate members thereof. 24 27. This designation is of a personal nature. Accordingly, this Court looks to
25 c o u n s e l to undertake personal responsibility to perform the designated functions and 26 r es er ve s the discretion to replace counsel, on her own request or this Court's own 27 m o t i o n , should she become unable to do so. 28 28. D e f e n d a n t s ' Liaison Counsel will have the following responsibilities:
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a.
Discov ery (1) I n i ti a t e, coordinate, and conduct all pretrial discovery on behalf of
3 d e f e n d a n t s in In Re: Bextra and Celebrex Marketing Sales Practices and Product 4 L i a b i li t y Litigation, MDL No. 1699, in coordination with any consolidated or coordinated 5 s t a t e court actions. 6 (2) De velop and propose to the Court schedules for the commencement,
7 e x e c u t i o n , and completion of all discovery on behalf of all defendants. 8 (3) C au se to be issued in the name of all defendants the necessary
9 disco very requests, motions, and subpoenas pertaining to any witnesses and documents 10 n e e d e d to properly prepare for the pretrial of relevant issues found in the pleadings of 11 t h i s litigation. Requests, notices, and subpoenas may be caused to be issued by 12 De fend ants' Liaison Counsel upon written request by an individual defendant in order to 13 a s s i st him or her in the preparation of the pretrial stages of his or her client's particular 14 c l a i m s . 15 (4) C o o r d i n a t e discovery, to the extent necessary, with MDL No. 1657,
16 I n Re Vioxx Products Liability Litigation, pursuant to the Panel's September 13, 2005 17 Order. 18 (5) Co ordin ate discovery to the fullest extent possible with related state
19 c o u r t actions. 20 21 b. H e a r i n g s and Meetings (1) Call meetings of counsel for defendants for any appropriate
22 pur pos e, including coordinating responses to questions of other parties or of the Court. 23 Initiate proposals, suggestions, schedules, or joint briefs, and any other appropriate 24 m a t t e r s , pertaining to pretrial proceedings. 25 26 d e f e n d a n t s . 27 (3) Ac t as spokesperson for all defendants at pretrial proceedings and in (2) E x a m i n e witnesses and introduce evidence at hearings on behalf of
28 respo nse to any inquiries by the Court, subject to the right of any defendant's counsel to
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1 p r e s e n t non-repetitive individual or different positions. 2 3 c. M i s c e l l an e o u s (1) S u b m i t and argue any verbal or written motions presented to the
4 C o u r t on behalf of defendants as well as oppose when necessary any motions submitted 5 b y plaintiffs or other parties which involve matters within the sphere of the 6 respo nsibilities of Defendants' Liaison Counsel. 7 8 litiga tion . 9 (3) Exp lore, develop, and pursue all settlement options pertaining to (2) Ne gotiate and enter into stipulations with plaintiffs regarding this
10 a n y claim or portion thereof in any case filed in this litigation. 11 (4) P e r f o r m such other functions as may be expressly authorized by
12 furthe r orders of the Court. 13 V I I . 14 N E X T STATUS CONFERENCE 29. P r i o r to the next Status Conference, Plaintiffs' Liaison Counsel and
15 D e f e n d a n t s ' Liaison Counsel shall meet and confer on the following topics: 16 (1) A n y case management order(s) pertaining to discovery, including
17 t h e coordination of discovery between these coordinated proceedings and actions 18 p e n d i n g in state courts; 19 20 (2) (3) The use of a plaintiff and defendant fact sheet; T h e creation of authorizations for, and a procedure to address, the
21 d i s c lo s u r e of plaintiff-specific medical, employment, insurance, and other records; and 22 23 30. (4) A protective order.
T h r e e days prior to the Status Conference, Plaintiffs' Liaison Counsel and
24 De fen dan ts' Liaison Counsel shall submit to the Court a proposed Pretrial Order No. 3 25 t h a t includes proposals with respect to the above topics, together with any other 26 proposa ls the parties may wish the Court to consider. 27 31. Thre e days prior to the Status Conference, Plaintiffs' Liaison Counsel shall
28 a l s o submit a proposal for maintaining time records of plaintiffs' counsel. The proposal
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1 m a y be incorporated into the proposed Pretrial Order No. 3. 2 32. T h e next Status Conference is scheduled for January 27, 2006 at 10:00
3 a.m . Plaintiffs' Liaison Counsel shall work with the Court's Deputy Clerk, Barbara 4 E s p i n o z a , on setting up a telephone "call in" number so that counsel may monitor the 5 S t a t u s Conference by telephone; however, any counsel who wishes to speak at the Status 6 C o n f e r e n c e must attend in person. 7 IT IS SO ORDERED.
8 Dated: December 13, 2005 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HONORABLE CHARLES R. BREYER UNITED STATES DISTRICT COURT
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